65 Mo. App. 514 | Mo. Ct. App. | 1896
A judgment was obtained by tbe Bank of Warren County on the seventeenth day of July, 1891, on a promissory note. The defendant was the principal in the note, and the plaintiff his surety. The bank assigned the judgment to one Eosenberger for value, and Eosenberger held it in secret trust for the defendant. The plaintiff tendered to Eosenberger the amount of the judgment, interest and costs, and requested him to assign it to plaintiff, which Eosenberger declined to do. The plaintiff thereupon filed his bill in equity to compel such assignment and obtained a decree in his favor, which we affirmed on appeal. Harper v. Rosenberger, 56 Mo. App. 388.
After such assignment the plaintiff caused an execution at law, in the name of the bank to his use, to be issued on the judgment, and the defendant moved to quash the same. The court refused to quash it, and the defendant appealed. We reversed the judgment and directed the court to quash the execution, since no execution at law could be issued upon a judgment, which by payment by either of the parties defendant thereto became extinct at law. Bank of Warren County v. Kemble, 61 Mo. App. 215.
The plaintiff thereupon instead of simply petitioning the court to issue its execution in equity, which he might have done with propriety, filed a long bill in equity for specific relief. In this bill, after setting out
The defendant demurred to this bill on the ground that it stated no ground for equitable relief. This demurrer the court overruled. The defendant thereupon demanded a jury trial, which the court denied. The plaintiff gave evidence substantiating the facts herein-above stated, and the court rendered a decree in his favor, declaring said judgment a lien upon defendant’s land described in the petition and ordering the same to be sold for its satisfaction.
The defendant appeals and assigns for error the overruling of his demurrer to the bill, the refusal of the court to grant him a jury trial, and that the decree is unwarranted by equity.
The demurrer was properly overruled. While the plaintiff’s bill asked for relief which the court could not grant, it was not demurrable provided the facts therein stated warranted any equitable relief. Crosby v. Farmers Bank, 107 Mo. 436. As above seen, the plaintiff was the owner of this judgment in equity, and he was entitled to enforce that security in any manner conformable to proceedings in equity in analogy with proceedings at law. Thus it was held in Neal v. Nash, 23 Ohio St. 483, that, where a surety is subrogated to the rights of the creditor against his principal in a judgment, he may, when it becomes dormant, revive and enforce it against his principal and the statute of limitations on ordinary debts does not apply. In Furnold v.
It is true that, at the date of the institution of this suit, the lien of the judgment had expired, but as the judgment creditor could at that date have sued out an execution on the judgment, or could have revived its lien by proceedings at law, so the plaintiff, being-invested in equity with all the rights of such creditor, could do so in equity, as equity follows the law. That he attempted by filing this bill to obtain a continuous lien from the date of the rendition of the judgment— a relief to which he was not entitled — does not deprive him of the relief to which he was entitled, and which the court could properly grant.
This being a proceeding strictly in equity, the defendant was not entitled to a jury trial, and hence the court did not err in denying it. The form of the decree, however, was unwarranted, whether the bill be treated as one for a revivor of the judgment lien or as one for an execution in equity. The court could not decree a lien on specific property, nor decree its sale unless such property was specially chargeable with the lien of this judgment owing to some antecedent dealings between the principal and surety, of which there is neither averment nor proof. The decree of the trial court will, therefore, be so modified as to decree a simple revival of this judgment in equity from the date of the decree, with an award of execution to enforce it. As thus modified the decree is affirmed and the cause remanded to the trial court, with directions to make the corresponding changes in the decree rendered. So ordered, respondent to pay the costs of this appeal.
Under the facts in this record the plaintiff was not entitled to equitable relief. His petition, asking to be subrogated in equity to the lien of the judgment paid by him as the surety of defendant, was filed on January 10, 1895. The judgment in question was rendered July 17, 1891, more than three years before the bringing of this action, hence it was not at that time a lien upon the property of defendant. Revised Statutes, 1889, sec. 6012. When the lien ceased, all ground of its equitable enforcement necessarily ceased, for it could not be held that a mere resort to equity is sufficient to revive extinct liens. Johnston v. Belden, 49 Iowa, 301. Prior to its expiration plaintiff might in equity have enforced the statutory lien of the judgment. The time limit of his right in this respect elapsed about six months before the bringing of this action. It necessarily results that, unless the jurisdiction to afford him relief in equity can be upheld on some other ground than the enforcement of the lien of the judgment, his petition should have been dismissed upon the objection made thereto by defendant, that the remedy sought was full, adequate and complete, at law. It is settled that this objection will prevail if well founded, whether pleaded or not. Humphreys v. Milling Co., 98 Mo. 542. It was properly made, however, in the present case, and defendant also demanded a trial by jury. The court, after overruling these defenses, tried the case as a strictly equitable proceeding and decreed a lien upon certain specific property of defendant.
That this was error is conceded in the opinion of my associates. I concur with them to that extent only. I hold further, however, that the petition did not make a case for equitable relief for the following reasons: After the expiration of the judgment lien,
Wherever subrogation of sureties has been upheld in equity in this state, it has been upon the ground, founded in reason, that there was something of advantage which equity could give the surety beyond what
In the case of Furnold v. Bank, 44 Mo. 333, 338, the jurisdiction in equity to enforce a judgment lien in favor of sureties, who had paid it off to disincumber their lands, was sustained on the ground that the lien was still existing, it being expressly stated in that case to wit: “This suit was instituted before the judgment lien eaypired.”
Under these authorities I am of opinion that plaintiff’s right to equitable relief depended upon the existence at the time of his application of some matter of equitable cognizance, and, as the record-shows the only